Fine to be assessed by lord or steward. mains unsettled. The payment to the lord, according to the improved value, is not merely a fixed share of the profits of the soil, or any proportion of the value of the fee simple, but a tax upon the capital of the tenant laid out in improvement. The tenant is unwilling to submit to such a tax when he can avoid it, and accordingly there is a great indisposition to build houses, or otherwise to expend any considerable sum upon land subject to such a burthen. The land remaining unimproved, no benefit accrues to the lord. It may be observed, that whenever there is a subdivision of the right to the profits of the same land between different individuals, although the parts are necessarily equal to the whole in legal interest, they are by no means so in actual value. With respect to copyholds, the benefit accruing to the lord from his rights over the copyhold tenements bears no proportion to the injury they occasion to the tenant, and a change of the tenure, whenever it can be effected, will be for the benefit of both (r)." 3. Of the Assessment of Fines. Of common right it belongs to the lord or steward to assess the fine (y). Whether a fine be reasonable or not is for the determination of a jury, upon the evidence to be submitted on behalf of both the lord and tenant (z). An individual copyholder cannot obtain relief in equity against an unreasonable fine, though a bill may be brought to settle a general fine payable by all the copyholders of a manor to avoid multiplicity of suits (a). Where a person holds several copyholds (x) 3 Real Property Rep. pp. 15, 16. (y) Lord Northwick v. Stanway, 6 East, 57; 2 Smith, 226. (x) Lord Verulam v. Howard, 7 Bing. 327. (a) Cowper v. Clerk, 3 P. Wms. 155; Brown v. Howard, 1 Eq. Cas. Abr. 163; Mayor of York v. Pilkington, 1 Atk. 282. by several titles of the same manor, the lord must assess and demand the fines severally, for the tenant may refuse to pay the fine for one and pay it for the others (b). Particular customs for the assessment of fines by the homage, in case of disagreement with the lord, have been supported, where copyholders for life have the right to nominate their successors (c). A regular assessment of the fine is necessary (d), though it need not be entered on the rolls (e). The specific sum so assessed must be personally demanded of the tenant (f) by the lord or his steward, for if a larger sum than is due be demanded, a new demand of the precise sum must be made before the lord can recover at law; for he shall not on such former demand recover what is actually due, but judgment shall be given against him (g). So if too large a sum be assessed, and the lord remit the excess, and demand only the sum actually due, a new assessment must be made to entitle the lord to proceed (h). An action of debt lies for the recovery of a copyhold fine (i). All actions of debt for any fine due in respect of any copyhold estates must be brought within six years after the cause of action accrued (k). The remedy by seizure until payment of the fine will be mentioned under the head of forfeitures (1). (b) 4 Rep. 28 a; 1 Watk. Cop. 378, 4th ed. (e) Lord Northwick v. Stanway, 6 East, 56. (ƒ) Denny v. Lemman, Hob. 135; Trotter v. Blake, 2 Mod. 229. (g) Titus v. Perkins, Skin. 249; Lord Northwick v. Stanway, 6 East, 56. (h) Bac. Abr. Copyholds (I. 4). (i) Grant v. Astle, 2 Dougl. 721. (k) 3 & 4 Will. 4, c. 42, s. 3; the 4th section contains a saving in favour of persons under disabilities. (1) See post, s. 6. When lord not restricted value. 4. Of Fines exceeding Two Years' Value. The rule that the lord shall be restricted to two to two years' years' value of the tenements is subject to some exceptions. Where a fine is payable on the admission of a purchaser only, and not on the admission of a person taking by descent, the lord is not restricted to two years' value, but may, in the absence of any custom to the contrary, take four, five or even seven years' value (m). Where by the custom of the manor a fine is payable by a purchaser on his first purchase only, and none for any subsequent purchases made of lands within the same manor, there is no restriction in respect of the amount of the fine to be taken on his first adınission (n). In some manors, as in those of Harrow on the Hill, Croydon, Lambeth and Richmond, a fine is payable on the first purchase only of lands within the manor; as if he purchase an acre of land, the purchaser shall pay a fine on his admission to it, but if he purchase fifty acres afterwards, he shall pay no further fine (0). Where by the custom of a manor persons not being previously customary tenants, or not dwelling in the manor, purchasing by surrender customary lands within the manor, were liable to pay a larger fine to the lord than tenants or inhabitants; and a person not being a tenant or inhabitant had purchased the equity of redemption in a customary estate, and in order to save the larger fine due in respect thereof, had subsequently become the purchaser of a smaller estate; the court granted a mandamus to the lord and steward to admit him to the latter; and as the return thereto (m) Pinsent's case, Freem. 496. (n) Kay v. Dillington, 1 Freem. 496; Morgan v. Scudamore, 2 Ch. C. 134. (0) 1 Watk. Cop. 372, 4th ed. did not allege any act of fraud in the transaction, the mandamus was made peremptory, although the effect of admittance to the smaller estate would be to defeat the lord's claim to the fine due upon the larger estate first purchased (p). Again, on the grant of lands coming into the lord's hands by escheat, &c., where he is not compellable to regrant, he may take what fine he pleases on the admission of a new tenant (q); for as in that case the lord is under no obligation to grant at all, he may fix his own terms as the price of such voluntary acts; and if the person soliciting the grant think the price too high, he is at liberty to decline it, and no one is injured. It should also be observed that in the case of copyholds for lives, where there is no custom to renew on payment of a certain fine, the lord may insist on his own terms (r). 5. Of the several Interests for which Fines are payable. nants. The admission of one joint-tenant is the admission Joint teof all, and the fine becomes payable when any one is admitted. Thus a copyholder surrendered to the use of his will, and devised to six trustees. One offered to be admitted, but the lord refused to admit him without the others, who intended to renounce. All the trustees not coming in, the lord entered for a forfeiture; but the whole court held that the lord ought to have admitted the trustee who offered himself, and then he might have proceeded to recover his fine for (p) Rex v. Meer and Forton, 2 D. & R. 824; S. C. nom. Rex v. Boughey, 1 B. & C. 565. (g) 13 Rep. 3; Hetl. 6; Wharton v. King, Anstr. 659. (7) 1 Wat. Cop. 374, 4th ed., ante, p. 66. all the six trustees, if it was due either by law or the custom of the manor. The court also thought the lord had been too hasty in entering for a supposed forfeiture before admittance; for that a seizure quousque was only until some body claimed to be admitted. Here one joint-tenant offered, and so it was clear the lord had no right to seize. Judgment was accordingly given for the defendants (s). On the death of one of several joint-tenants, the survivors take the whole by survivorship without any admittance or the payment of any fine (t), unless some act has been done to sever the joint-tenancy. If the legal interest in copyholds be devised to two trustees, and one refuses to accept the trust, the effect of such refusal is to vest the entire legal estate in the continuing trustee, who may then be admitted to the whole interest (u). It is to be observed that when copyholds are devised to several trustees as joint-tenants, the increase of the fine on account of the number of tenants may be avoided by some of the trustees releasing or disclaiming in favour of one of the trustees, so as to make him sole tenant (v). The effect of a disclaimer by any trustee is to place the disclaiming trustee in the same situation as if no devise had been made to him (x). A copyhold may be disclaimed by parol or other matter in pais (y); but it is advisable that a trustee refusing to accept a trust should execute a deed of disclaimer, because it affords clear evidence (*). (s) Roe d. Ashton v. Hutton, Wils. 162. (t) Co. Cop. s. 56, Tr. 130; Roe d. Ashton v. Hutton, 2 Wils. 162. (u) Reed v. Shergold, 10 Ves. 330; Begbie v. Cook, 2 Bing. N. C. 70; 2 Scott, 128. (v) 2 Preston on Abst. 226. (x) Rex v. Wilson, 5 Mann. & R. 140; 10 B. & C. 5. (y) Ibid. (z) Stacey v. Elph, 1 My. & K. 195; see Peppercorn v. Wayman, 5 De G. & S. 230; Shelford's Real Prop. Stat. 360, 5th ed. |